This will be a mundane entry. I am going to use this space to type a few of my notes from
Florida Personal Injury Law and Practice with Wrongful Death Actions 2009-2010 Edition by Judge Thomas Sawaya. I already knew some of the material in this treatise from other law school classes. What I am recording here are things I did not know prior to reading Judge Sawaya's book. Many of these notes are simply questions. Most of the questions I need help in answering, though a few I could answer through more research.
Anyway, if a prospective employer stumbles across my blog, this entry will serve to show that, despite not being employed this summer, I tried to make good use of my time to become proficient in personal injury law. In another entry, I will post some notes from
Florida Motor Vehicle No-Fault Law: Personal Injury Protection 2009-2010 edition by Russel Lazega.
Chapter 1 Negligence: Basic Concepts and Duty, pgs.1-81.
-Know the difference between negligence per se, prima facie evidence of negligence, and strict liability. Of these, strict liability is the strongest for the plaintiff. If strict liability applies, you do not have to prove proximate causation- only actual causation and damages. I am still not totally clear on the difference between negligence per se and prima facie evidence. I think negligence per se is stronger. It usually comes up when the defendant has violated a statute. It means negligence has occurred, but it is not necessarily actionable negligence. The plaintiff must still prove that 1) the plaintiff belongs to the class that the statute was intended to protect 2) that the plaintiff suffered injury of the type the statute was designed to prevent 3) violation of the statute was the proximate cause of the injury. Prima facie evidence of negligence creates a rebuttable presumption of negligence. An example might be violation of a traffic ordinance. The defendant may still show that no negligence at all occurred, though.
Chapter 2 Standard of Care, pgs.83-130.
-Know the difference between slight negligence, ordinary negligence, gross negligence, and culpable negligence. The slight negligence standard usually applies to common carriers.
-p.122 Be aware of the sudden emergency doctrine.
-Children are responsible for their own torts, though they have their own separate standard of care (keep in mind negligent supervision COA against parents). A child under six is considered to be incapable of negligence.
Chapter 3 Causation pgs.131-200.
-Know the difference between a concurring cause and an intervening cause and the ramifications. Intervening causes can be a complete bar to recovery, and they are often decided as a matter of law at the summary judgment phase.
-p.187 Are motions for directed verdict heard outside the presence of the jury?
-p.196 How free are we as attorneys to argue our own jury instructions in closing argument?
-Be aware of the unavoidable accident doctrine. This can be a complete bar to recovery.
-Be aware of the rescue doctrine. Police and firemen can recover for injuries not reasonably foreseeable in the line of duty. They can also recover for injuries sustained from going above and beyond the call of duty.
Chapter 4 Imputed Negligence pgs. 201-283.
-Generally, you can not impute the negligence of an independent contractor to the employer.
-Are the participants in a partnership, joint venture, or joint enterprise jointly and severally liable? Probably yes. See p.244.
-One spouse is not liable for the torts of the other spouse.
-p.260 See exceptions to the general rule that a parent is not liable for the torts of the child.
-When an employee commits an intentional tort, think about negligent hiring and retention as a COA.
Chapter 5 Defenses p.285-335
-This chapter focuses primarily on comparative negligence. Contributory negligence is dead in Florida.
-Comparative negligence is an affirmative defense that must be pleaded and proven.
-p.299 How can a non-party have summary judgment ruled in its favor? Who is arguing for this non-party?
-p.310 If a negligent vehicle owner's insurance is not enough to cover damages, and the negligent driver's insurance is not enough either, procedurally, how would you go about getting as much as you can from both under comparative negligence?
-p.315 See this page for information on Fabre defendants. I will have to read this information again and again.
-Assumption of the risk is an affirmative defense that results in a jury interrogatory. It often applies to participation in contact sports.
-p.328 What exactly is the competent evidence standard?
Chapter 6 Strict Liability p.337-385
-It is uncertain under Florida law if strict liability should be decided by the court or by the fact finder. Strict liability (or an abnormally dangerous activity) can be designated as such by the legislature.
-Practically speaking, there is almost no difference between an invitee and licensee.
Chapter 7 Joint and Several Liability p.387-429
-This is the most confusing chapter in the treatise. The first sentence says that joint and several liability was abrogated by the legislature in 2006, but the book goes on to talk like it is still in effect. I am not sure if it is in partial effect or not. For example, the book questions whether an active tortfeasor and a defendant held vicariously liable are joint tortfeasors. The book says they are jointly and severally liable. The case it uses to support this rule is from 1998. There is no mention of the 2006 abrogation and its effect. There are many examples of this throughout the chapter. It gives me more questions than answers.
-See p.423 for the difference between res judicata and estoppel by judgment.
-p.416 Can a defendant implead a defunct company?
-p.420 As a plaintiff, why would you ever enter a satisfaction of judgment? What exactly is that and is it required?
-p.428 When a plaintiff proceeds against less than all of the negligent parties, then in a later action sues more, the percentage of fault on the jury verdict form from the first trial has no bearing on the subsequent trial, right? Or is the plaintiff completely barred from subsequent trials via res judicata or estoppel by judgment?
-p.422 What is the election of actions doctrine?
-p.427 How is an offer of judgment different from an offer of settlement? Why would you choose one versus the other?
Chapter 8 Indemnity, Subrogation and Contribution p.431-479.
-p.436 What is the difference between establishing a predicate and establishing an element of a COA?
-p.460 In settling with one of multiple tortfeasors, make sure you reserve the right to proceed against other tortfeasors.
-The right to a trial by jury only extends to actions at law (not equitable remedies).
-p.472 What are the "principles of equity?" Just fairness?
Chapter 9 Sovereign Immunity p.481-583
-In deciding whether sovereign immunity applies, one of the key concepts is whether the government's action was discretionary or operational.
-p.487 As a plaintiff's lawyer, we want the deeper pockets of the governmental entity, but must we plead in the alternative malicious or wanton misconduct to avoid res judicata in an action against the employee?
-p.502 I need more examples of a duty owed to the plaintiff as opposed to the general public.
-p.518 As a plaintiff, you do not have to meet all three of these requirements to sue the police department, do you? Just meeting one should be enough. Satisfying all three is too high a burden.
-p.528 What is a capital improvement?
-p.546 Be aware of special taxing districts.
-p.547 Whether or not a health care provider is a government employee, is this a question for the jury?
-p.553 Why would a state agency purchase liability insurance, and do you need a claims bill to get to this insurance money beyond the cap?
-See p.561 versus p.559. Should you attach the notice letter to the complaint or not?
-The cap is $100,000 for one plaintiff, a max cap of $200,000 total for multiple plaintiffs.
Chapter 10 Premises Liability p.585-649
-Why the injured party was on the premises (trespasser vs. invitee) affects the duty standard.
-The attractive nuisance doctrine only applies to children.
-Firefighters and police are invitees.
-Be aware of the obvious danger doctrine for summary judgment.
Chapter 11 Liability of Those Who Sell or Furnish Alcoholic Beverages p.651-688.
-Liability is limited to commercial vendors (not social hosts). In order for liability to exist, the person must must be habitually addicted to alcohol, and the vendor must have notice (though not written notice). They can also be liable for selling to minors.
-Many of the same ways that intoxication is proved by the state in criminal cases are also useful in civil proceedings.
-Make sure the vendor has liability insurance. Look at the language of the policy for exclusions (CGL).
-A plaintiff intoxicated at the time generally can not recover damages.
Chapter 12 Medical Malpractice p.689-836.
-Two year statute of limitations.
-90 day presuit investigation requirement that does not toll the statute of limitations.
-Be aware of the statute of repose as a complete bar to recovery.
-Just because negligence happens in a hospital doe not automatically mean that it is medical malpractice. A patient falling out of his or her bed may constitute ordinary negligence.
Chapter 13 Products Liability p.837-958.
-Common elements: 1) defect was present in the product 2) defect caused the injuries complained of 3) defect existed at the time the manufacturer, retailer, or supplier parted with possession of the product.
-Be aware of the zone of risk created when the product is parted with. It is not just to the purchaser.
-Negligent failure to warn is a COA.
-p.867 Can a settlement with Shands hospital be kept private?
-p.890 If another manufacturer can be impleaded, whose market share is known, but the manufacturer is insolvent or defunct, is that bad luck for the plaintiff or the defendant? Probably the plaintiff?
-p.896 Elements to establish strict liability.
-p.915 A prima facie case is not enough for summary judgment.
-p.924 Who or what is a "warranty beneficiary" as opposed to the "actual buyer?" See p.926. Other family members?
-Breach of warranty COA: 1) sale of the goods 2) goods must be defective 3) certain notice requirements must be complied with.
-p.918 Elements for breach of implied warranty.
-p.933 Elements for breach of implied warranty of fitness for a particular purpose.
-p.934 Implied warranty of merchantability.
-p.952 When would a violation of the SOL not appear on the face of the complaint? What exactly is the face of the complaint?
-Note that if the COA is based on a contract breach, the SOL is five years. Wrongful death actions still constitute a 2 year SOL.
-Be aware of the statute of repose.
Chapter 14 Use of Criminal Convictions in Subsequent Civil Proceedings: Statutory Collateral Estoppel Under Florida and Federal Law p.959-1004.
-Basically, a defendant who is found guilty (or perhaps pleads nolo contendere) to a criminal offense is estopped from denying the elements of that offense in a subsequent civil proceeding against him for damages.
Chapter 15 Punitive Damages p.1005-1103.
-p.1065 Does bankruptcy absolve punitive damages? If so, the plaintiff would want evidence of the defendant's financial worth to make sure that at least some money is paid.
-p.1093 What are the elements of the tort of fraudulent inducement?
-p.1030 For the statutory standard for punitive damages.
-Punitive damages may not be recovered against a sovereign.
-More is required for punitive damages bases on vicarious liability.
-p.1087 Punitive damages are available in all civil actions by statute. This is controversial, as it steps on theories of contract law.
-You can not initially plead punitive damages.
Chapters 16-22 Wrongful Death Actions pgs.1105-1233.
-Wrongful death is a COA that derives from statute as opposed to common law.
-SOL is 2 years from the date of death.
-Pain and suffering damages are not available for for the decedent, only the survivors.
-p.1126 How does the dangerous instrumentality doctrine bar a wrongful death claim?
-p.1136 What is the difference between petitioning the court and motioning the court?
-p.1142 How a personal representative of the estate is appointed.
-A COA exists for negligent stillbirth.
-p.1215-16 Apparently, joint and several liability lives on in some wrongful death actions.
-p.1217 Excellent example of the breakdown in damages.
-p.1222 What is the doctrine of recoupment?
-There is no COA for wrongful life, but there is a COA for wrongful birth.
-Wrongful Death actions can also be founded in breach of contract or warranty.
-The court must approve settlements involving minors.
-p.1148 Make sure to comply with the non claim statute (Deals with claims on the estate).
-Stepchildren probably can not recover in a wrongful death action.
-A child unborn at the time of parent's death may recover.
-For parents to recover for pain and suffering for the death of their child, the child must be less than 25 years old (unless there are no other survivors).
-For damages, consider the joint life expectancy of the parent and the child together.
-Illegitimate children of the mother may recover, but not of the father unless the father has recognized a responsibility for the child's support.
-A stillborn fetus may not recover (but keep in mind the COA for negligent stillbirth).
-Blood relatives and adoptive brothers and sisters may recover if they are wholly or partly dependent on the decedent for support or services.
-Recovery for the estate and recovery for survivors are two separate items in a wrongful death action.
-Proceeds recovered by survivors are not subject to creditors' claims.
-p.1204 Be aware of the collateral source rule.
-p.1221 Is there a 4 year SOL for wrongful death actions against state agencies?
-Children can not sue parents and vice versa unless liability insurance is available.
Chapter 23 Survival Actions p.1233-1246
-Personal injury actions can survive the death of the plaintiff, unless the death was caused by the injuries complained of in the action. In that case, the action abates and you must institute a wrongful death action.
-p.1245 All who can be sued on a joint obligation must be sued?
-Be aware of the suggestion of death requirement.
-This chapter also deals with substitution of parties.
Chapter 24 Burden of Proof, Standard of Proof, and Evidentiary Issues pgs.1247-1352.
-p.1248 Are there no directed verdicts in a bench trial? Just dismissals?
-p.1263 Some examples of when the clear and convincing evidence standard applies.
-p.1281 The jury is informed of the presumption of negligence in a rear end collision by the judge. There is a list of rebuttable presumptions on this page.
-p.1284 List of rebuttable presumptions affecting the burden of persuasion.
-p.1287 Definition of circumstantial evidence.
-p.1292 Motion the court to instruct the jury on certain inferences.
-p.1293 You get a jury instruction for establishing res ipsa loquitur.
-p.1343 Offers to settle before a lawsuit commences are admissible.
-p.1346 I do not understand the court's reasoning in the small print on this page. Mary Carter agreements are not allowed, yet via the court's decision it seems there is no way to enforce this. The court actually seems to be encouraging Mary Carter agreements.
-p.1351 What is a sponsor's note?
-The burden of proof is divided into the burden of producing evidence and the burden of persuasion.
-Presumptions are required to be adhered to by the jury, but juries may reject inferences. I need to read the section on inferences and presumptions again. See the procedure, p.1284.
-Traffic citations generally are not admissible, and neither is the officer's testimony establishing that a traffic citation was issued.
-Insurance coverage is not relevant evidence.
Chapter 25 Discovery pgs.1353-1471.
Much of this chapter is a review of things covered in my Florida Civil Practice class and Civil Pre-Trial class.
-p.1362 What does it mean, that a rule is considered remedial?
-p.1379 How do you annex a document?
-p.1394 Can you ask some interrogatories, wait for the answer, and then ask more as long as the total does not exceed 30?
-p.1431 The independent medical examiner does not charge the same rate as an expert witness, right?
-p.1483 When does the court grant a valcin presumption versus an adverse inference?
-p.1483 In an adverse inference, opposing counsel may not argue against the inference?
Chapter 26 Spoliation of Evidence pgs.1473-1484.
-Spoliation of evidence is its own COA, though you cannot file it jointly with another COA against the same defendant in the same matter.
Chapter 27 Client Relations and Fee Agreements pgs.1485-1533.
-p.1519 What is a charging lien?
-p.1529 When do you file a demand for appointment of arbitrators and may either party file it?
-p.1533 What is the lodestar approach?
-27:10 So fees for property damage are the same as personal injury or wrongful death?
-When fee-splitting a contingency fee, the primary gets 75% and the secondary gets 25%.
-p.1528 Standards for the fee.
Chapter 28 The Jury pgs.1535-1555.
-p.1543 What is back striking a juror?
-p.1554 I am not sure how peremptory challenges work with alternate jurors.
-Always poll the jury if they return a verdict against you.
